My understanding is that a trademark is if you offer a product like Avocado Soda ™ and a servicemark if you offer a service like Avocado Tasting & Consulting (SM). The trademark TM is used everytime the product name is used but what about the servicemark SM? What does it have to be used on? Just the company name or anything else like the actual service package I offer?
If another company is already using the name (no SM) but in another state so I can use the name in my state can I still servicemark it and if so, must I protect it against a prior user?
Depends on a lot of factors - do they have a federal registration, how well-known is the company etc etc. The question can’t be answered because these types of questions require specific information.
A service mark is just a sub-type of trademark. It’s still a trademark though. Use the SM symbol with your service mark whenever you use your service mark (on your letterhead, signage etc). Use the ® symbol when you have a trademark (or service mark) registered with the USPTO (the federal registration system).
I don’t know much about your state registration system.
Isamu got the broad points correct. There’s effectively little difference between a trademark and a service mark so far as legal implications.
When and where do you have to use your mark? You would have to use your service mark in commerce, that is, as an indicator of the origin of services. Now where exactly this would have to appear would be something you should consult your own attorney about, but you could certainly apply some common sense to decide that whenever you are offering service, there should be some appearance of your mark – on your business cards, on your letterhead, on your website (every page), in every E-mail message, on your voice mail outgoing message, on your invoices, on your tax documents. Every time you answer the phone or send someone out to provide service, your mark should probably be mentioned.
So if your service mark is “Avocado Tasting and Consulting” and you offer a service level called “Gold Service Package,” then you should make sure that it’s clear that the “Gold Service Package” is a service of “Avocado Tasting and Consulting.” Don’t spin off “Gold Service Package” by itself unless you want that to become a separate service mark.
When and where do you have to use the (SM) indicator? I’m guessing a little bit here, but you don’t have to be quite as anal about this. You certainly don’t have to use it in speech or in voice mail messages. Probably on any major document, if the (SM) appears at least once prominently, that would be fine. This is also true for ™. It doesn’t necessarily have to be used absolutely every time the trademark appears. It just has to be used enough to put people on notice.
If there is another prior user of the mark – Service marks, like trademarks are bound by things like geography and line of business. The question isn’t where is that other user based but whether your service areas overlap, both geographically and business-wise. If they do overlap, then the senior user will get priority. However, if that other company doesn’t do business in your area (again, either geographically or business-wise), then it’s possible for you to be able to carve out your own area of priority. This can get tricky, however, because you might find yourself boxed in when you want to expand.